Real Court Reform Overdue
April 27, 2012
DETROIT — If there is any institution that should automatically command public respect, it is our court system, especially a state Supreme Court, any state’s highest legal authority outside the Federal system. But sadly, that hasn’t been true in Michigan for years. Michigan Supreme Court Justices have often acted more like vengeful political partisans than judicious stewards of the State Constitution.
In recent years, when one political party gained control of the Court, their justices have set about almost gleefully reversing decisions made by the earlier majority. Nor has the show stopped there. Until she retired from the court two years ago, bitter maverick GOP Justice Elizabeth Weaver engaged in a war of public name-calling with her fellow Republican Justices that even included comments about her personal appearance.
Supreme Court elections have degenerated into highly expensive affairs that have included the spending of millions of anonymous donations on often misleading, nasty television ads. Four years ago, the University of Chicago Law School rated all fifty state Supreme Courts. In terms of quality, Michigan ranked dead last. The courts were ranked according to criteria including judicial independence from political and other outside influences, as well as how often their rulings were cited by other courts.
All of this has deeply pained Marilyn Kelly, a soft-spoken, dignified justice who this year is finishing her sixteenth and final year on the court. Two years ago, then-Chief Justice Kelly decided her legacy would involve trying to do something about this. She recruited James Ryan, a Federal Appeals Judge in the Sixth Circuit, to serve with her as Co-Chair of a Michigan Judicial Selection Task Force.
Sandra Day O‘Connor, the first woman ever to sit on the U.S. Supreme Court, agreed to be the panel‘s (mostly) Honorary Chair. They then convened a panel that included some of the state’s most distinguished citizens—including some non-lawyers—and disparate views ranging from conservative to liberal. The Task Force released their findings Thursday, after a year of deliberations, and their recommendations were startling.
The panel, which Kelly told me, had worked hard to achieve consensus and unanimously called for a series of sweeping reforms especially in the way justices are selected.
“Michigan’s process for choosing Supreme Court Justices has recently attracted national attention for its excessive cost, its lack of transparency, and its damaging negativity,” the report begins. After studying how other states do things and many hours of vigorous debate, the Task Force developed a series of “common-sense, practical solutions that can rapidly make judicial selection in this state more democratic and effective.”
Not surprisingly, the Task Force condemned the present system in which Supreme Court nominees are traditionally selected at highly partisan state political conventions. Instead, they called for a switch to “open, non-partisan primaries,” to select Supreme Court judges, just as other Michigan judges are selected.
The Task Force noted candidly that, “the current system leaves the nomination process in the control of party insiders…an open primary system could reduce the influence of partisan politics on the selection of Supreme Court candidates.” In fact, many of the members would prefer to amend the Michigan Constitution to allow governors to appoint Supreme Court justices once a series of potential candidates were screened by some form of an Advisory Commission.
Actually, almost half of all Michigan Supreme Court Justices have historically been appointed to the bench by governors following the death or resignation of an incumbent (they must then campaign during the next election.) Establishing a commission to screen nominees would, the panel felt, help dispel the belief “that raw political calculation, rather than qualifications,” are behind these appointments.
However, the top reform priority of the task force wasn’t judicial selection, but money. Thanks largely to Michigan’s inadequate disclosure laws, most of the money spent on recent state Supreme Court races has been spent by shadowy groups who are not subject to campaign finance reform requirements. As the Task Force notes, “The 2010 campaign season for the Michigan Supreme Court was the most expensive and most secretive in the nation. Over the last decade, more than half of all spending on Supreme Court cases in Michigan went unreported, and therefore the sources went undisclosed.”
Don’t think this is a problem? The Task Force discovered that eighty-six percent of cases before Michigan’s Highest Court involved contributors to the campaigns of at least some of the Justices. The task force urged action—legislative or otherwise—to fix this. Besides these sweeping recommendations, the panel advocated a number of other steps, including a requirement that the Secretary of State create a voter education guide, and that the current age limits on justices be dropped. Currently, no Michigan judge at any level can run for re-election after they turn seventy years of age.
Interviewed about the panel’s findings, Justice Kelly said she knew very well that a lot of similar earnest, “good-government” reports had been produced only to then vanish onto library shelves. She intends to do her best to see that this doesn’t happen again. Kelly may have some time to crusade for reform: She is seventy-four and by law must leave the court when her term expires this January.
“Restoring faith in our highest court is critically important,” she told me. “Michigan deserves better.” Few legal scholars dispute that. The challenge will be getting the public to pay attention, getting the governor on board, and the state legislature—many of whom are themselves heavily dependent on special interests—to act.